Mulligan v Queensland Community Corrections Board
[2000] QSC 481
•21 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: Mulligan v Queensland Community Corrections Board [2000] QSC 481 PARTIES: TIMOTHY STEWART MULLIGAN
(applicant)v
QUEENSLAND COMMUNITY CORRECTIONS BOARD
(respondent)FILE NO/S: SC No 7467 of 2000 ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 21 December 2000 DELIVERED AT: Brisbane HEARING DATE: 15 December 2000 JUDGE: Williams J ORDER: 1. That the time for bringing the application pursuant to the provisions of the Judicial Review Act 1991 be extended to 29 August 2000;
2. That the decision of the respondent evidenced by the letters to the applicant dated 6 June 2000 and 30 June 2000, be set aside and direct that the respondent reconsider its decision according to law;
3. That the respondent pay the applicant’s costs of and incidental to the application to be assessed.
CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION - IMPROPER EXERCISE OF POWER – RELEVANT AND IRRELEVANT CONSIDERATIONS - application for statutory review of a decision of respondent to decline applicant’s application for release on parole – where application made in accordance with date for eligibility for parole recommended by the sentencing judge – where respondent refused application on basis that applicant’s security classification did not meet that required by Ministerial Guideline for approval for release – where it was in practical terms highly unlikely that applicant could have achieved security classification required by Guidelines by the time he became eligible to apply for release in accordance with sentencing judge’s recommendation - whether respondent erred in the circumstances by refusing to depart from Guideline – whether Board required to “adhere” to Guideline because exceptional circumstances not shown – parole authorities cannot rely on Guideline to prevent consideration of applications for release on the merits at the time specified in the sentencing judge’s recommendation – whether application in any case out of time – application deemed to have been commenced within time
Corrective Services Act 1988 (Qld), s 139(1)
Judicial Review Act 1991 (Qld), s 26, s 32
Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld)Re Wood (1998) QSC 179; 10 September 1998, approved
COUNSEL: J C Davidson for the applicant
DC Boyle for the respondentSOLICITORS: O’Reilly & Lillicrap for the applicant
Walsh Halligan Douglas for the respondent
WILLIAMS J: This is an application for statutory order of review of a decision of the respondent, Queensland Community Corrections Board, made in June 2000 with respect to the applicant, Timothy Stewart Mulligan.
The applicant was sentenced in the Beenleigh District Court on 18 January 1999 on one count of armed robbery in company. He was sentenced to six years imprisonment with a recommendation that he be eligible for consideration for release on parole after serving two years. A declaration was made that 119 days was time already served under that sentence. The sentencing remarks by Judge O’Brien included a reference to the fact that the applicant had a previous conviction for a similar offence in Perth in 1995.
It is not in dispute that the applicant was born on 22 August 1974 and is currently 26 years of age. He is presently an inmate at Wolston Correctional Centre.
During his period in custody the applicant has undertaken a number of trade and educational courses aimed at addressing his offending behaviour. Further there was no challenge to his claim that during his period of imprisonment he has not been breached with respect to any disciplinary matters.
It should also be noted that during the period on remand (at least 119 days) the applicant did not receive a security classification nor did he have the opportunity of taking part in courses within the jail system.
It was accepted by each side that given the above matters the applicant became eligible in view of the recommendation of the sentencing judge to apply for release to work on 22 January 2000, became eligible to apply for home detention on 22 May 2000, and became eligible to apply for parole on 22 September 2000.
On or about 18 November 1999 the applicant submitted an application for release to work. By letter of 3 May 2000 the respondent informed the applicant that a decision would be deferred pending the receipt of a psychiatric report.
The respondent subsequently made a decision on that application which was communicated to the applicant by letter dated 6 June 2000. It is in the following terms:
“The Queensland Community Corrections Board has carefully considered your application for parole and release to work dated 18 November 1999 and has paid particular regard to all the matters in your favour. However there is another factor which indicates that it may well be inappropriate to approve your application.
The Board is obliged by law to adhere to certain Guidelines. It can depart from them only when it is satisfied that exceptional circumstances exist. One such Guideline provides that a prisoner should achieve a low or open security classification prior to approval for release to a community-based program with a point score of less than 25. The Board has been advised that your classification is medium and your point score is 53 points.
The Board has so far been unable to discover any circumstances which would justify its departure from the Guideline. Consequently the Board is presently unwilling to approve your application.
The Board recommends prior to making any future application you prepare a detailed plan of how you intend to manage both your psychiatric problems and your drug problems while in a community setting.
You are not obliged to forward written submissions in support of your application. If you intend to do so, you are required to send them to this office within 7 days of your receipt of this letter.”
The Guidelines referred to therein were the “Ministerial Guidelines to the Queensland Community Corrections Board” of February 2000 issued pursuant to s 139(1) of the Corrective Services Act 1988. A copy of those Guidelines was marked exhibit 1. The section of the Act provides that the Minister may from time to time issue Guidelines “with respect to the policy to be adhered to by the Board in exercising its powers and discharging its functions under this Act.” Justice White in Re Wood (1998) QSC 179; 10 September 1998 considered the use of the term “adhere” in that section. She concluded: “The expression is not an absolute prohibition against departure under any circumstances but sets parameters which the Board is expected to follow closely.” I agree with that observation. With respect, I also agree with her Honour’s later observation: “The term “guidelines”, though not commonly used in relation to judicial discretions, is familiar enough in the bureaucratic and administrative world, where it denotes rules or standards which are not binding and may be relaxed when it is expedient to do so in order to do justice in the particular case.”
The particular Guideline referred to by the respondent in the letter of 6 June 2000 was that found in paragraph 2.2, which is in these terms:
“A prisoner should achieve a low or open security classification prior to approval for release to a community-based program. At the discretion of the Board, medium security classification prisoners can be considered for release to a community-based program where:
(a)circumstances indicate an exception is unlikely to increase the level of risk to the community;
(b) the prisoner is close to the point of reduction from a medium to a low security classification; and
(c) the prisoner is not serving a sentence for a serious violent offence.”
In the course of argument there was some debate as to the meaning of the phrase “serious violent offence” therein. Later in the Guidelines one finds a number of references to “serious violent offenders” pursuant to the provisions of the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997. I can see no justification for giving the reference in paragraph (c) a meaning other than such as would be in conformity with that 1997 Act.
When the applicant was accepted into custody after sentence he was given a high security classification with a point score of 63. As the letter of 6 June 2000 demonstrates at the time in question his classification was medium with a point score of 53. In order to comply with paragraph 2.2 of the Guidelines he required an open or low security classification with a point score less than 25.
Karen Fletcher, a solicitor with the Prisoners’ Legal Service Inc., a person reasonably familiar with such matters, expressed the following opinion in her affidavit:
“The interval between the initial security classification, the application of Sentence Management Procedures, and the application of Sentence Management Policy and Practices make it, in my experience, virtually impossible in practice for a person in Mr Mulligan’s position to achieve a low security classification by his eligibility date for supervised Community Release.”
That was not challenged in material before the court, but counsel for the respondent Board in submissions contended that it was theoretically possible for the applicant to have achieved a point score of less than 25 by the time in question. In support of that argument he referred to Chapter 17 of the Policy and Procedures Manual which is exhibited to Ms Fletcher’s affidavit. In accordance with that policy a Sentence Management Review must be undertaken at not more than six monthly intervals. That means that the applicant would have been (and in fact was) reviewed on three occasions prior to the relevant date. Clauses 5.6.1C, 5.6.2C and 5.6.3C demonstrate that in theory a prisoner’s point score could be reduced by a maximum of 20 points on the occasion of each review. There is no evidence as to what is the average reduction for a well behaved prisoner on each review. Here over the period of the three reviews the applicant’s point score was reduced by 16 points.
Given the offence for which the applicant was sentenced, the head sentence imposed, the period deemed spent in custody prior to sentence, and the parole recommendations, it was in practical terms highly unlikely, if not impossible, for the applicant to have achieved a low or open security classification with a point score less than 25 by the time he became eligible to apply for a community-based order in accordance with the recommendation of the sentencing judge.
The applicant did not furnish any response within 7 days of the letter of 6 June, and by letter dated 30 June and served 5 July the respondent notified the applicant as follows: “in view of the circumstances described in my previous letter to you, the Board has decided that your application be declined.”
The issue which therefore arises for determination on this application is how should the respondent Board have treated the application in question in the light of paragraph 2.2 of the Guidelines. In my view, at least in the present circumstances, the respondent erred by saying that it could only depart from the Guidelines, if it was satisfied that “exceptional circumstances” existed. The use of the term “exceptional” clearly indicates that the Board considered that something “out of the ordinary” had to be established before there could be a departure from the requirements of paragraph 2.2. Putting it that way strongly suggests (though the respondent did not use the expression) that there was an onus on the applicant to establish something “exceptional” before his case could be considered on the merits.
Here the applicant was not serving a sentence for a serious violent offence and there is nothing to indicate that the respondent made any assessment of the “risk to the community” associated with releasing him on a community-based program. Prima facie the decision was based on the fact that the applicant had a medium security classification and was not “close to the point of reduction from a medium to a low security classification”.
In my view one of the consequences of a sentencing judge making a recommendation that a prisoner be eligible to apply for parole at a particular time is that the parole authorities cannot rely on the Guidelines to prevent a consideration of an application for release to a community-based program on the merits at the time specified in the recommendation. Of course, the respondent is not obliged to make an order at that time releasing the prisoner to a community based program; but the respondent must, in my view, consider such an application on the merits at that time.
When considering the merits of such an application at that time the respondent could always have regard to the Guidelines and to the fact that but for the judge’s recommendation the prisoner would be ineligible for release. Whilst that is a factor to be taken into consideration it must be weighed along with all other relevant considerations, such as the prisoner’s behaviour whilst in custody, the response to courses offered whilst in custody, and the risk to the community associated with release to the community-based program. That is by no means an exhaustive statement of the considerations which are, or may be, relevant to a consideration on the merits of such an application at that time.
Here by concluding that notwithstanding the sentencing judge’s recommendation, it could only depart from the Guidelines if “satisfied that exceptional circumstances exist”, the respondent seriously erred. The effect of the error was that the respondent did not make a decision on the merits of the application. In other words, the respondent failed to have regard to relevant considerations in making its decision.
The respondent submitted that the application in question was out of time and even if the court concluded that there was some error associated with the respondent’s decision relief should not be granted. The point is a little academic because the applicant became eligible to make a further application on 14 December 2000. In other words, whether or not the decision of June is set aside the applicant is now in a position to make a further application for release to a community-based program. However, in the circumstances, I should briefly deal with the issue raised by the respondent as to whether the application is out of time.
On 5 July the solicitors for the applicant wrote to the respondent a letter containing the following paragraphs:
“In order that our client may be in a position to properly respond, would you please advise us as to the main issues that the Board feels are adverse to our client with respect to his Application for parole and release to work.
We note your advices as contained in your correspondence of 6 June 2000 regarding the fact that our client does not have a low or open security classification, and your reference to the administrative guideline in relation to that issue. Please advise as to whether this is the only issue that concerns the Board.”
Indeed it was on that very day, 5 July, that the applicant was served with the letter dated 30 June 2000 finally refusing the application. In my view there is much force in the submission of counsel for the applicant that the solicitor’s letter of 5 July, though it did not formally refer to the letter of 30 June, should be regarded as a request for reasons within s 32 of the Judicial Review Act 1991.
There was in fact no response to the letter of 5 July by 7 August when the solicitor for the applicant wrote again to the respondent seeking a reply to the request contained in that earlier letter. The reply from the respondent bore date 3 August 2000 but the applicant’s solicitor has sworn it was not received until 24 August 2000. That is the only evidence on the point and I can see no reason why I ought not act on it. The letter dated 3 August was in these terms:
“I refer to your correspondence of 5 July 2000. The letter to Mr Mulligan on 6 June clearly told him first, that he was not obliged to forward any further submissions, and second, that if he intended to do so he was required to send his submissions within 7 days of receiving that letter. Ample time was allowed for his reply. No submissions were received, and by a letter of 30 June, he was advised that his application had been declined.
In those circumstances, the Board does not intend to enter into any further correspondence with respect to that application.”
In my view it is not necessary to consider in detail the competing submissions with respect to that correspondence. It is tolerably clear that the solicitors for the applicant were seeking some further reasons for the decision which was communicated by the respondent’s letter of 30 June 2000. If the applicant’s letter of 5 July 2000 had been regarded by the respondent as one requesting reasons, and had furnished reasons, then time for bringing the application for judicial review would have commenced to run when those reasons were given. Section 26 of the Judicial Review Act contains numerous provisions relating to the time within which the application must be brought. The basic period is 28 days after the decision was made, but that can be extended by the court in the exercise of its discretion. Here it seems to me that it is appropriate, although it may not strictly be necessary, to extend the period of time so that the application filed 29 August 2000 is deemed to have been commenced within time.
The court will therefore order:
1. that the time for bringing the application pursuant to the provisions of the Judicial Review Act 1991 be extended to 29 August 2000;
2. that the decision of the respondent evidenced by the letters to the applicant dated 6 June 2000 and 30 June 2000, be set aside and direct that the respondent reconsider its decision according to law;
3. that the respondent pay the applicant’s costs of and incidental to the application to be assessed.
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